Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp
Date:
March 2-3, 2007
Location:
Columbia Law School Jerome Greene Hall 435 West 116th Street (at Amsterdam Avenue) New York, NY 10027 All panels are free to the public.
Sponsored by:
NAACP Legal Defense and Educational Fund and Columbia Law School
> Symposium Program
FRIDAY, MARCH 2, 2007
OPENING EVENT
11:00 am—2:00 pm Screening: “The Trials of Darryl Hunt” Sponsored by Clifford Chance, LLP Following the screening, there will be a discussion with the Filmmakers, Darryl Hunt, and his attorney, Mark Rabil.
SYMPOSIUM
2:00 pm –2:30 pm Introduction and Welcome Jeffrey Fagan, Columbia Law School Theodore M. Shaw, NAACP Legal Defense and Educational Fund
2:30 pm–3:15 pm The Harold Leventhal Memorial Lecture: Setting the Stage: Race and the Death Penalty Before McCleskey Anthony Amsterdam, New York University School of Law
3:15 pm–3:30 pm Break
3:30 pm–5:00 pm THE LEGAL, POLITICAL AND SOCIALCONTEXT OF McCLESKEY
Moderator Christina Swarns, NAACP Legal Defense and Educational Fund
McCleskey in Historical Context Richard Banks, Stanford Law School
Reflections on Litigating the Case John Charles Boger, University of North Carolina Law School; Counsel of Record for Warren McCleskey in the Supreme Court
The McCleskey Decision: Justice Brennan’s Dissent Lawrence C. Marshall, Stanford Law School
Commentary Richard Burr, Burr and Welch
5:15 pm–8:00 pm RECEPTION AND DINNER (By Invitation Only)
Hosted by David Schizer, Dean Columbia Law School
Keynote Speaker: Bob Herbert, Columnist, The New York Times
SATURDAY, MARCH 3, 2007
9:00 am–10:30 am THE IMPACT OF McCLESKEY ON THE ADMINISTRATION OF CRIMINAL JUSTICE AND CAPITAL PUNISHMENT BETWEEN 1987 AND 2007
Moderator George Kendall, Holland & Knight, LLP
Race and Proportionality After McCleskey: Did Anything Change? David Baldus, University of Iowa, College of Law
The Trial Process: How McCleskey Impacted Representation and Jury Decisionmaking Sheri Lynn Johnson, Cornell Law School
Access to Justice: How McCleskey Affected Policing Policies and Criminal Justice Outcomes Jeffrey Fagan, Columbia University Law School
Commentary Cathleen Price, Equal Justice Initiative of Alabama
10:30 am–11:00 am Break
11:00 am–12:30 pm WHERE DO WE GO FROM HERE I: A THEORETICAL MODEL FOR GETTING PAST McCLESKEY
Moderator Charles Ogletree, Harvard Law School
Transforming the Popular Discourse on Crime, Race and Rights Kendall Thomas, Columbia Law School
Constructing a Criminal Justice System Free of Racial Bias Dorothy E. Roberts, Northwestern University School of Law
Civil and Human Rights Advocacy as a Vehicle for Reforming the Criminal Justice System David Rudovsky, University of Pennsylvania, School of Law
Commentary Miriam Gohara, Resource Counsel, Federal Capital Habeas Project
12:30 pm–2:00 pm LUNCH (By Invitation Only)
Keynote Speaker Theodore M. Shaw, NAACP Legal Defense and Educational Fund
2:00 pm–3:30 pm WHERE DO WE GO FROM HERE II: THE NEW FRONT LINES OF RACE AND CRIMINAL JUSTICE REFORM LITIGATION, LEGISLATION AND PROSECUTION
Moderator Charles Ogletree, Harvard Law School
What is the Future of Litigation in Race and Criminal Justice Reform? Bryan Stevenson, Equal Justice Initiative of Alabama
How Can Legislation Effect Change? Olati Johnson, Columbia Law School
How Should the Prosecutor Address Problems of Race and Discretion? Angela J. Davis, American University, Washington College of Law
Commentary Christina Swarns, NAACP Legal Defense and Educational Fund
3:30 pm–4:30 pm MOVING FORWARD: WHAT ARE THE NEXT STEPS?
Moderator Steven Hawkins, JEHT Foundation
The Role of the Prosecutor Wayne McKenzie, Vera Institute of Justice
The Role of the Legislature Rodney Ellis, Texas State Senate
The Role of Advocates for Racial Justice David Singleton, Ohio Justice and Policy Center
4:30 pm–5:00 pm Closing Remarks Gara LaMarche, Open Society Institute
In the past quarter century, few cases on criminal law and procedure have had the reach and impact of McCleskey v. Kemp, 481 U.S. 279 (1987). In McCleskey, the NAACP Legal Defense and Educational Fund, Inc. (LDF) presented the United States Supreme Court with strong statistical evidence showing that race played a pivotal role in the Georgia capital punishment system. Specifically, LDF introduced the landmark Baldus Study, which showed that in the life and death calculus of capital cases, blacks were treated differently than similarly situated whites. Although this evidence gave the Court the opportunity to acknowledge and repudiate the arbitrary infl uence of race in the administration of the death penalty, the Court found no constitutional error in a system where blacks and whites were treated unequally.
The McCleskey decision reached far beyond the confines of capital punishment. It all but completely insulated criminal justice laws and policies from racially disparate impact challenges and ultimately set the stage for 20 years of increasing racial disproportionality within the criminal justice system. Numerous studies conducted in the 20 years that followed McCleskey have shown that race now plays a critical role in virtually all aspects of the criminal justice process. African Americans are stopped, ticketed, searched and/or arrested by the police at far higher rates than whites. Relative to their rates of arrest and participation in crime, African Americans are disproportionately represented within U.S. jails and prisons. Indeed, within a decade of McCleskey the number of minority citizens in prison exceeded the total number of persons incarcerated in the U.S. in the year preceding the decision.
Today, one in three African-American males will enter state or federal prison at some point in their lifetimes; and while African Americans make up only 12 percent of the U.S. population, they constitute 44 percent of sentenced inmates—the largest group behind bars. Legal mobilizations such as the “War on Drugs” worsened racial disparity by mandating harsher sentences for drugs whose impacts were disproportionately felt in communities of color. And race continues to infl uence the decision between who lives and who dies at the hands of the criminal justice system: race of defendant and/or race of victim are dominant factors in the decision to seek death in numerous jurisdictions including Pennsylvania, Maryland, Indiana, Kentucky, New Jersey, and North Carolina.
The 20th anniversary of the McCleskey decision presents a unique opportunity for the racial justice community to renew and reinvigorate the struggle to achieve balance and fairness in the administration of justice in the United States. With the “Pursuing Racial Fairness in Criminal Justice” Symposium, LDF and Columbia Law School are bringing together leading scholars on race, crime and law, as well as activists and practitioners to discuss new ways of challenging, and ultimately reversing, McCleskey’s reach through legislative advocacy, institutional reform, and litigation.
